AREEA principal employee relations consultant Bill FitzGerald analyses the recent Fair Work decision to uphold an employee’s dismissal, despite linked criminal charges being dropped by state courts.
The Facts
THE facts of Mackie v BHP Coal Pty Ltd are founded on a culmination events from a long-running dispute which included strike action and picket lines at Blackwater in Queensland.
Glen Mackie, an employee of BHP Coal who conducted operations for the BHP Mitsubishi Alliance, was alleged to have thrown a projectile at a fellow worker as he drove both himself and a passenger through a 70-picket line blockading the mine entrance. Both vehicle occupants had decided not to join the industrial action, and the driver, on being hit with the projectile, swerved as an avoidance measure. Mackie, as a result, was dismissed.
The company relied on the Code of Conduct for grounding its decision, pointing to a number of values including integrity, respect and the need to maintain a workplace free of harassment and bullying, which extended to freedom of association matters.
The reference to freedom of association matters was directed at the victim, who was harassed, had his property vandalized and he was called a number of offensive names, including ‘scab’, as a consequence of he and some of his colleagues not participating in industrial action.
The employee was charged with a criminal offence and convicted in the first instance, successfully appealed the conviction on a technicality, prompting Mackie to lodge an unfair dismissal application with the Fair Work Commission.
The Decision
In making his decision, Senior Deputy President Richards noted inconsistencies in the applicant’s evidence and found the onus was on the employer to prove misconduct. The onus of proof, however, related to the civil standard of the balance of probabilities, rather than the criminal standard of beyond reasonable doubt. As a result, SDP Richards was satisfied “that it was more likely than not that the employee, in fact, threw the projectile”.
The employee argued the dismissal was disproportionate to the offence, but SDP Richards rejected the argument based on prevailing safety, behavioural and freedom of association issues.
Implications for Employers
This case is important for two reasons. Firstly, the company’s policy was held as valid reason to support the dismissal of the employee; and secondly, the employee avoided a criminal penalty on an appeal based on technicality, but the Commission noted a different stand of proof applied and was not influenced by the criminal case appeal.
For employers, this decision ingrains the need to have in place well-constructed policies and procedures. It also refutes the fallacy where employees acquitted on a criminal charge can then automatically have dismissal cases overturned. Further, the decision highlights the issue of inappropriate behaviour against employees choosing not to participate in industrial action, which is linked to the freedom of association provisions.
AREEA provides advice on establishing policies specifically within the resource industry and offers guidance in circumstances involving discipline or termination.
AREEA also offers training to managers and supervisors with the aim of ensuring compliance with the Fair Work Act and minimizing exposure to unfair dismissal and adverse action claims.
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